Alison S. Hightower (s.b.#112429)
Nossaman, Guthner, Knox & Elliott, llp
50 California street, 34th floor
San Francisco, CA 94111
Telephone: (415) 398-3600
Facsimile: (415) 398-2438
Attorneys for Proposed Amici Curiae
THE CONTRA COSTA TRANSPORTATION AUTHORITY,
THE MARIN CONGESTION MANAGEMENT AGENCY,
THE NAPA COUNTY TRANSPORTATION PLANNING AGENCY,
SANTA CLARA VALLEY TRANSPORTATION AUTHORITY,
SOLANO TRANSPORTATION AUTHORITY AND
SONOMA COUNTY TRANSPORTATION AGENCY
R. ZACHARY WASSERMAN (S.B. # 054764)
GREGGORY C. BRANDT (S.B. #189487)
Wendel, Rosen, Black & Dean, llp
50 California street, 24th floor
Oakland, CA 94607
Telephone: (510) 834-6600
Facsimile: (510) 834-1928
Attorneys for Proposed Amici Curiae
THE ALAMEDA COUNTY CONGESTION MANAGEMENT AGENCY
UNITED STATES DISTRICT COURT
Northern District OF CALIFORNIA
SAN FRANCISCO DIVISION
BAYVIEW HUNTERS POINT Community advocates, ET AL.
Plaintiffs,
vs.
METROPOLITAN TRANSPORTATION COMMISSION, ET AL.
Defendants.
Case No: C-01-0750 TEH
AMICUS BRIEF OF THE ALAMEDA COUNTY CONGESTION MANAGEMENT AGENCY, THE CONTRA
COSTA TRANSPORTATION AUTHORITY, MARIN CONGESTION MANAGEMENT AGENCY, THE
NAPA COUNTY TRANSPORTATION PLANNING AGENCY, THE SANTA CLARA VALLEY TRANSPORTATION
AGENCY, SOLANO TRANSPORTATION AUTHORITY AND THE SONOMA COUNTY TRANSPORTATION
AGENCY IN OPPOSITION TO PLAINTIFFS MOTION FOR PERMANENT INJUNCTION
Date: June 10, 2002
Time: 10:00 am
Ctrm.: 12
Judge: The Honorable Thelton E. Henderson
I. Introduction
The congestion management and countywide planning agencies (CMAs)
of Alameda, Contra Costa, Marin, Napa, Santa Clara, Solano and Sonoma counties
are charged with implementing strategies for reducing highway congestion
in the Bay Area, improving the environment, and fostering a healthy economy.
As part of their mission, the CMAs evaluate a myriad of transportation projects,
including public transit, and after extensive review recommend certain projects
for funding. If Californias Metropolitan Transportation Commission
(MTC) agrees that these projects are consistent with regional
plans and policies, these projects are included in the Regional Transportation
Plan (RTP) and become eligible for state and federal government
funding.
The CMAs support public transit, and a substantial amount of the projects
incorporated in the current RTP promote public transit and other measures
to improve air quality. Indeed, the 2001 RTP commits approximately 77 percent
of available funding to public transit, and MTC projects that if the RTP
is implemented, transit ridership is likely to increase by 15 percent above
1982 levels by the summer of 2007. None of the projects in the RTP were
selected at the whim of the CMAs, but rather were carefully chosen after
lengthy analysis and debate, including substantial input from the public,
various environmental groups, and myriad local governments over periods
as long as two years. The RTP is a balanced and effective plan and should
not be disturbed by an injunction enforcing TCM 2.
But to reopen the RTP, as plaintiffs seek, may place CMA-sponsored and supported
projects in legal limbo, jeopardizing current funding sources that have
stringent time deadlines that must be met to keep funding. Although it is
not clear that reopening the RTP necessarily results in a reallocation of
funds, were that reallocation to happen, each CMA would be required to re-analyze
the merit of the various projects currently included in the RTP. This will
force the CMAs to devote scarce resources to repeating, in conjunction with
MTC, the lengthy, expensive and laborious process of determining which projects
should remain in the RTP.
This remedy is not in the public interest, particularly since it is based
on three fundamental flawed assumptions:
Assumption No. 1: That MTC can control the decisions of the millions
of potential transit riders who on a daily basis determine whether to ride
public transit;
Assumption No. 2: That the more money that is devoted to public transit,
the more people will ride public transit, so that a steadily increasing
money flow will result in a steadily climbing percentage of persons choosing
to ride public transit; and
Assumption No. 3: That the specific transit projects plaintiffs seek
to be funded will result in persons choosing to ride transit rather than
drive their cars, and as a result, improve air quality in the Bay Area.
Each of these assumptions underlying the remedy plaintiffs seek is undeniably
false. MTC cannot control the decisions of millions of persons on a daily
basisfactors out of MTCs control influence the countless decisions
made by Bay Area residents whether to ride transit. Even if MTC could mandate
that all of the available money be spent on transit, it still could not
guarantee that it would achieveand forever maintaina specific
ridership increase. Indeed, although the amount of money devoted to transit
has steadily climbed over the last twenty years, the number of people riding
transit does not consistently correlate to money expended. And the specific
AC Transit projects plaintiffs seek to fund are on their face intended to
assist autoless riders, not those who could choose to leave
their automobiles behind and take transit. The CMAs are aware of no evidence
suggesting that increasing the already disproportionate portion of the RTP
funding currently earmarked to assist transit-dependent riders would increase
choice ridership or consequently do a single thing to improve
air quality. Instead, it will force the CMAs to devote precious resources
repeating the cumbersome and time-consuming process of evaluating the competing
transportation projects to permit an amendment of the 2001 RTP, and presumably
delay if not quash other worthy projects that will do at least as much to
improve air quality.
The Court should not grant a permanent injunction that requires the MTC
to reopen or amend the current RTP.
II. Statement of facts
A. Bay Area County Congestion Management And Countywide Planning Agencies
The Bay Area county congestion management agencies were created
by AB 471 (Chapter 106), Statutes of 1989, and the subsequent passage of
Proposition 111 in 1990, which increased the gas tax in California and was
co-joined to AB 471. Cal. Govt C. § 65088
et seq. Declaration of Daryl K. Halls, ¶ 3. These laws required
that each urbanized county create a congestion management agency,
and adopt a congestion management program, in order to be eligible for state
and federal funds. Id. These congestion management agencies were created
through designation by a majority of the cities, representing a majority
of the population of the incorporated area, and by the county board of supervisors.
Id.; e.g., MTC Declaration of Robert McCleary, ¶ 4. Local jurisdictions
were required to meet standards adopted in the congestion management program
in order to be eligible for the increment of gas tax funds provided through
Proposition 111. Id.
The Alameda County CMA was created in 1991 as a joint powers agency consisting
of the County of Alameda, all 14 cities in the County, AC Transit, Union
City Transit District, Livermore Amador Valley Transit Authority and BART.
Declaration of Dennis Fay, ¶ 3. Its functions and responsibilities
include coordinating transportation planning and funding programs within
Alameda County and with contiguous counties; coordinating countywide input
to the California Clean Air Act and Transportation Control Measures of the
MTC and the Bay Area Air Quality Management District (BAAQMD);
and the States Traffic Congestion Relief Program; programs funds for
the Alameda County share of the State Transportation Improvement Program
(STIP); and acting as overall program manager in Alameda County
for administering Transportation for Clean Air Funds controlled regionally
by the BAAQMD, and develops a countywide transportation plan to guide transportation
funding and service decisions over both the long and short term. Id.; Cal. Govt
C. § 65089.
The Contra Costa Transportation Authority, created as a county transportation
authority pursuant to Public Utilities Code sections 18000 et seq., was
designated as that countys CMA in 1991. Amicus McCleary Decl., ¶ 4.
The Marin Congestion Management Agency and the Solano Transportation Authority
came into existence shortly after the passage of Proposition 111, and perform
functions similar to Alameda and Contra Costas agencies. Declaration
of Farhad Mansourian, ¶¶ 3-4; Halls Decl., ¶ 3.
Santa Clara Valley Transportation Authority (VTA) was formed
in August 1990 as a Joint Powers Agency (JPA) with the fifteen cities in
Santa Clara County and the County Board of Supervisors. Declaration of Michael
Evanhoe, ¶ 3. In 1995, the Santa Clara Valley Transportation Authority
was designated as the Administrator of the CMA under a new JPA as agreed
to by the fifteen cities and the County Board of Supervisors. Id.
The City/County Association of Governments of San Mateo was formed in 1991
and functions as the Congestion Management Agency for San Mateo County.
Declaration of Richard Napier, ¶ 3. It prepares a congestion management
plan addressing the statutorily-required elements. Id., ¶ 4.
The Sonoma County Transportation Authority (SCTA) also was formed
in 1991 as a countywide Joint Powers Agency (JPA) charged with coordinating
planning, programming, and funding for highways, streets and roads, transit
and paratransit, and bikeways among its ten member agencies. Declaration
of Suzanne Wilford, ¶ 3. In 1997, when the Legislature rescinded
the mandate requiring each urban county to have a CMA, the SCTA opted out
of that function, but SCTA continues to perform most of the planning and
programming functions performed by CMAs. Id., ¶ 4.
In 1998, Napa County assigned congestion management planning to its Transportation
Planning Agency, which also is the regional governing body for fixed route
transit, paratransit, and community shuttles, and the program manager for
Transportation Funds for Clean Air Act funding. Declaration of Michael Zdon,
¶ 4. Napa County utilizes this countywide planning agency to submit
its strategic transportation plan to MTC after a one and a half year county
planning process. Id., ¶¶ 5-8.
B. The County Transportation Plans
As required by state law, each CMA must adopt or amend its congestion management
program every two years after considering public input and consultation
with local governments, the local air pollution control district or air
quality management district, the transportation planning agency and the
regional transportation providers. Cal. Govt C. § 65089.
The six mandatory elements of this program are detailed in the statute,
and include: (1) measuring traffic level of service standards (the capacity
of highways and major roadways); (2) a performance element,
requiring the evaluation of current and future multimodal system performance
for the movement of people and goods; (3) a travel demand element
that promotes alternative transportation methods such as carpools, vanpools,
transit and bicycles, park-and-ride-lots, improving the balance between
jobs and housing, and parking management programs; (4) analysis of the impacts
of land use decisions on regional transportation systems; (5) a seven-year
capital improvement program to increase the capacity of the multimodal system,
based on the data obtained under the performance element above; and (6)
a uniform database on traffic impacts for use in a countywide transportation
computer model. Cal. Govt C. § 65089; Halls Decl.,
¶ 4; MTC McCleary Decl., ¶ 6.
The county CMAs submit their congestion management programs to the MTC to
evaluate the consistency between the programs and the regional transportation
plans, and if they are found consistent, then the MTC incorporates the programs
into the regional transportation improvement program (RTIP). Cal. Govt
C. § 65089.2(a)-(b); Evanhoe Decl., ¶ 4; Fay Decl.,
¶ 4; Halls Decl., ¶ 4; MTC McCleary Decl., ¶ 6;
Napier Decl., ¶ 4; Wilford Decl., ¶¶ 5-6; Zdon
Decl., ¶ 5. By statute, no surface transportation program funds
or congestion mitigation and air quality funds shall be programmed for a
CMA project unless found to be in conformity with the congestion management
program, unless the MTC finds the project of regional significance. Cal. Govt
C. § 65089.2(c)(1).
While the MTC has control over the purse strings, it is the CMAs in the
first instance that determine which county projects should be considered
for state and federal transportation funding. Evanhoe Decl., ¶¶ 5-7;
Fay Decl., ¶ 4; MTC McCleary Decl., ¶ 6; Napier Decl.,
¶¶ 5-8; Wilford Decl., ¶ 7; Zdon Decl., ¶¶ 6-7.
These transportation projects include public transit as well as bicycle
and pedestrian paths and amenities, highways, carpool (HOV or
high occupancy vehicle) lanes, vanpool programs, and other beneficial
measures. Evanhoe Decl., ¶¶ 5-6; Fay Decl., ¶ 9;
Mansourian Decl., ¶ 4; MTC McCleary Decl., ¶¶ 7-13;
Napier Decl., ¶ 13. By statute, the county congestion management
programs also must include efforts to increase the capacity of the county
multimodal program, and that goal cannot be achieved by ignoring roads and
highways. MTC McCleary Decl., ¶ 13; Cal. Govt C. § 65089(b)(5).
When assigning funding actually available (typically on a two-year cycle,
looking five years into the future) to the list of projects in the RTP,
the county agencies determine which highway, local streets and roads, transit
and bicycle projects to fund based on a careful assessment of numerous factors,
with the goals of reducing congestion, improving air quality and balancing
the various transportation choices offered to Bay Area residents. MTC McCleary
Decl., ¶ 13. In prioritizing improvements, some county agencies
also consider their responsibilities under the voter-approved initiative
that created the agency, which dedicated funding for specific highway and
transit projects, and established priorities for continued investment. Id.;
Evanhoe Decl., ¶ 5; Napier Decl., ¶ 15.
The cost of potential projects far exceeds the money available, and all
RTP projects must have identified sources of funding. Declaration of Chris
Brittle, ¶ 8. Not surprisingly, the congestion management and
countywide planning programs (CMP) are subjected to intense
public scrutiny and debate at every step of the process. Id., ¶ 14-15;
Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5, 7; Halls Decl.,
¶¶ 5 and 7; Mansourian Decl., ¶¶ 4, 6; MTC
McCleary Decl., ¶ 14; Napier Decl., ¶ 6-7; Wilford Decl.,
¶¶ 8-9; Zdon Decl., ¶¶ 8-9; Cal. Govt
C. § 65089(a). For instance, in Sonoma County, the planning process
started nearly two years before final adoption of the plan with a series
of facilitated meetings involving SCTA Board members, staffs from the ten
member agencies, transit operators, private sector interests, and individual
citizens and other agencies. Wilford Decl., ¶ 8. The meetings
provided an opportunity to discuss the purpose of the county transportation
plan, its relationship to the RTP, and the process and goals for its development.
Id. Three specific agency and citizen committees were used in the planning
process, including the Technical Advisory Committee (TAC), the Countywide
Bicycle Advisory Committee (CBAC), and the Citizens Advisory Committee (CAC).
Id. Numerous meetings were held at each of the nine city council meetings,
before the Board of Supervisors and at the SCTA. Id. Before the actual development
of the written plan, five community meetings were held throughout the county
to gather public input. Id.
Sonoma and Napa Counties even hired a contracted facilitator to help achieve
the best level of consensus possible on recommended actions given the financial,
environmental, and philosophical differences among those who live and work
in those Counties. Zdon Decl., ¶ 9; Wilford Decl., ¶ 9.
The objective was to develop a transportation system that enhances the quality
of life of its users, fosters community livability, and protects the unique
rural and agricultural land use characteristics of the region. Id. Other
counties have also sought input from committees representing diverse viewpoints.
E.g., Evanhoe Decl., ¶ 7; Fay Decl., ¶ 5; Mansourian
Decl., ¶ 4. Groups such as the Environmental Defense Fund, the
Sierra Club, the Bay Area Transportation and Land Use Coalition, as well
as Chambers of Commerce, provide input. Fay Decl., ¶ 5.
Given the breadth of public input, it is not surprising that this process
to prepare and adopt a county plan takes many months, and often over a year.
Evanhoe Decl., ¶ 7 (almost two years); Fay Decl., ¶ 12
(nine months); Mansourian Decl., ¶ 4 (nearly two years); Wilford
Decl., ¶ 8 (nearly two years); Napier Decl., ¶ 7 (almost
10 years); Zdon Decl., ¶ 8 (18 months). Additional public scrutiny
occurs once MTC receives the county plans. MTC reviews the CMPs for consistency
with its adopted RTP. Cal. Govt C. § 65089.2. Then, when
MTC prepares its new RTP, selected projects are drawn from the CMPs by the
CMAs and are submitted to the MTC, which considers what to include in its
draft RTP as new or changed projects, obtains public feedback, determines
which projects to include in its draft RTP, subjects the draft RTP to review
under the California Environmental Quality Act, and then adopts necessary
findings under the California Environmental Quality Act. MTC McCleary Decl.,
¶ 15. Only after this entire process is completed does the RTP
become final upon MTC board approval. Id. The current RTP required approximately
a year for MTC to complete this review. Id.
The current RTP thus includes the fruits of this lengthy and time-consuming
process. Reopening the RTP will affect not only the MTC, but also each county
CMA. Reopening the RTP may delay currently funded transportation projects,
and could jeopardize existing funding if deadlines are missed. Evanhoe Decl.,
¶ 10; Fay Decl., ¶ 12; Halls Decl., ¶ 11;
Mansourian Decl., ¶ 10; Napier Decl., ¶ 14; Zdon Decl.,
¶ 19. As detailed below, this lengthy process would divert scarce
resources from current CMA projects without materially improving air quality.
Indeed, it could have the opposite effect.
III. Legal argument
A. This Court Must Consider The Public Interest In Determining What Remedy
To Provide Plaintiffs
The issue before the Court is whether to issue an injunction, and if so,
what the injunction should provide. As noted by our high court, [a]n
appeal to the equity jurisdiction conferred on federal district courts is
an appeal to the sound discretion which guides the determinations of courts
of equity. Meredith v. Winter Haven, 320 U.S. 228, 235, 64 S.Ct. 7,
11 (1943); accord, Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970
(1994). The Court has also cautioned that an injunction is an equitable
remedy that does not issue as of course. Amoco Production Co. v. Village
of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987).
The court must balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the requested
relief. Id. Moreover, [t]he grant of jurisdiction to ensure
compliance with a statute hardly suggests an absolute duty to do so under
any and all circumstances, and a federal judge sitting as chancellor is
not mechanically obligated to grant an injunction for every violation of
law. Id., quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313,
102 S.Ct. 1798, 1802, 72 L.Ed.2d 91 (1982).
In conducting this inquiry, the court must consider the public interest
in denying injunctive relief. Id., 456 U.S. at 312. For instance, in Charter
Township Of Huron, Michigan v. Richards, 997 F.2d 1168 (6th Cir. 1993),
the two towns challenged landing and take-off procedures implemented by
the Federal Aviation Administration (FAA) as having been adopted without
complying with the National Environmental Policy Act (NEPA), and sought
a mandatory injunction to require that the FAA return to its prior procedures.
Although the FAA had not strictly complied with NEPA, it had considered
the environmental impact of its changed procedures after-the-fact, and the
court found that the public interest would be better served by denying the
mandatory injunction sought. Id. at 1175.
When considering the public interest, the court should focus on the underlying
public purpose embodied in the statute in question. For instance, in Weinberger
v. Romero-Barcelo, supra, 456 U.S. 305, the Court of Appeals enjoined the
Navy from discharging ordnance into the sea until it obtained a Water Pollution
Control Act permit. The Supreme Court reversed, finding that the underlying
purpose of the statute was to avoid water pollution, and since there was
not a showing of such pollution, the Navy should be permitted to continue
discharging ordnance while it obtained the necessary permit. Id. at 314-315.
Following Romero-Barcelo, the High Court in Amoco Production Co., supra,
also reversed the appellate courts entry of an injunction. The Court
found that the purpose of the statute in question was to protect Alaskan
subsistence resources from unnecessary destruction. The Ninth Circuit erred
in presuming irreparable damage when the public agency failed to evaluate
thoroughly the environmental impact of a proposed oil exploration, and the
evidence reflected that injury to subsistence resources from the exploration
in dispute was not at all probable. The Ninth Circuit failed to balance
the injury to the other side, which had invested approximately $70 million
into the exploration. And the Ninth Circuit also erred in failing to consider
the public interest in promoting energy production as balanced against the
public interest in preserving environmental resources. Id. at 545-46.
The Court also must consider the effect of a requested injunction on non-parties
to the litigation. Ward v. Walsh, 1 F.3d 873, 879-80 (9th Cir. 1993), cert.
denied, 510 U.S. 1992 (1994). As shown below, the effect of the injunction
plaintiffs here seek on the county transportation agencies would be devastating
to the agencies and to the public interest in achieving responsible transportation
planning.
1. Reopening The RTP Does Not Serve The Public Interest Because The Current
RTP Will Improve Air Quality And Increase Transit Ridership
There is no dispute here that the public purpose underlying the Clean Air
Act is to foster improved air quality. But the specific remedy plaintiffs
seek loses sight of the ultimate public policy objective, and harms the
public interest in numerous ways.
Plaintiffs seek an injunction requiring that [b]y no later than November
9, 2006, MTC and MUNI shall ensure that regional transit ridership in the
Bay Area has increased to at least 578 million annual boardings. To
achieve this result, plaintiffs ask that the injunction require that MTC
amend its RTP to specify particular transit projects to which it will allocate
funding, and set interim milestones for the regional ridership increases
to be gained under the amended RTP. Assuming that plaintiffs envision that
this process would result in MTC allocating more funding to additional transit
projects than currently included in the RTP, then this Court must consider
whether the public interest is served by such a process and result. Amoco
Production, supra.
The plaintiffs have proffered no evidence to show that the projects included
in the current RTP are insufficient to improve air quality, or even to increase
transit ridership. The only evidence in the record is to the contrary.
First, the current RTP devotes 77 percent of available funding to transit
operations, maintenance, and capital projects. As detailed by the executive
directors of many of the affected counties, the projects promise to greatly
enhance and improve public transit in the Bay Area. Evanhoe Decl., ¶ 6;
Fay Decl., ¶ 8; Halls Decl., ¶¶ 8-10; MTC McCleary
Decl., ¶ 12; Mansourian Decl., ¶ 8; Napier Decl., ¶ 9;
Wilford Decl., ¶¶ 17-18; Zdon Decl., ¶ 17. The
RTP includes operating funds for AC Transit, Muni, SamTrans, Golden Gate
Transit, BART, County Connection, WestCAT, Tri-Delta and Caltrain from sources
largely dedicated to that purpose. Id. It also designates millions of dollars
to fund expand transit by projects such as BART from Fremont to San Jose/Santa
Clara, Alameda Commuter Express train from Stockton to San Jose; a BART
extension to Warm Springs in Fremont; connecting BART to the Oakland airport;
the downtown /East Valley Light Rail Line in Santa Clara County, the Central
Subway project in San Francisco, expansion of the Vallejo Baylink Ferry
Service, as well as to fund new intermodal stations to enhance
the publics ability to transfer between transit systems, new express
buses, capital improvements to enhance existing transit systems, upgrades
of fare collection systems, station and facility rehabilitation projects,
advanced train control systems, and parking and lighting improvements for
certain BART stations. Id.
Second, the current RTP incorporates dozens of other projects that will
improve air quality in the region. Napa County, for instance, has rideshare
funding, electric vehicles, park and ride lots, and new bikeways. Zdon Decl.,
¶ 16. Bicycle riders stand to gain significant new trails and
facilities throughout the Bay Area. Evanhoe Decl., ¶ 6; Mansourian
Decl., ¶ 6; Napier Decl., ¶ 9(d). Marin and Sonoma are
developing a new passenger rail service for those counties. Wilford Decl.,
¶ 15.
Third, the RTP helps counties to satisfy the requirements of the travel
demand component of their CMPs. Pursuant to Government Code section 65089(b)(3),
the travel demand element promotes and supports alternatives to the solo
occupant automobile (carpools, vanpools, transit and bicycles), increased
use of park-and-ride lots, improvements in the balance between jobs and
housing, and other strategies for reducing vehicle trips such as flexible
working hours, telecommuting and parking management programs.
Construction of parking facilities at BART stations, new inter-modal facilities
at strategic locations, providing financial incentives to build housing
near Caltrain stations; SMART passenger rail service in Sonoma County, carpool
lots and bus centers, and shuttle projects are examples of projects anticipated
under the current RTP and designed to improve travel demand. Evanhoe Decl.,
¶ 6; Fay Decl., ¶ 8; Halls Decl., ¶ 7; MTC
McCleary Decl., ¶ 11; Napier Decl., ¶ 10; Wilford Decl.,
¶ 18; Zdon Decl., ¶ 15. In addition, the counties are
spending millions per year in TFCA and sales tax funds to guarantee transit
riders a ride home in an emergency, encourage carpooling and vanpooling,
and establish transit pass and transit web information system programs.
Halls Decl., ¶ 7-8; Fay Decl., ¶ 9; MTC McCleary Decl.,
¶ 11; Napier Decl., ¶ 11; Wilford Decl., ¶ 14-18;
Zdon Decl., ¶ 16.
Much of the proposed investment in state highway improvements also are designed
to improve air quality. High occupancy vehicle (HOV) lanes facilitate improved
express bus service (including those linking adjoining counties), as well
as encourage carpools and vanpools. Fay Decl., ¶ 9; Mansourian
Decl., ¶ 8-9; MTC McCleary Decl., ¶ 16; Halls Decl.,
¶ 9. By reducing road/highway congestion, these projects further
promote efficient bus travel. MTC McCleary Decl., ¶ 16. Other
projects are targeted to maintaining roads and highways in good condition,
and/or expanding local arterials, again benefiting bus services. Id.; Evanhoe
Decl., ¶ 6; Halls Decl., ¶ 9. Some projects are intended
to make the roads and bridges significantly safer. Mansourian Decl., ¶ 9;
Napier Decl., ¶ 12.
In short, the only evidence before the Court demonstrates undeniably that
the current RTP includes billions of dollars targeted for projects to improve
air quality. There is no evidence to suggest, let alone compel, a finding
that these worthwhile projects should be jeopardized in order to promote
the transit projects plaintiffs prefer. This is particularly true because
the current RTP already channels 77 percent to transit projects and MTCs
forecasts that transit ridership is projected to increase to the 15% increase
level by mid-2007. Declaration of Christopher Brittle, ¶ 6.
Indeed, requiring MTC to reopen the RTP for yet another study of potential
projects is exactly the mechanical formalistic approach the Supreme Court
condemned in Romero-Barcelo and Amoco Production. As in those cases where
the formalistic requirement of obtaining a permit or preparing a formal
environmental assessment was improperly the focus of the Court of Appeals
inquiry, it would be improper for this Court to focus on whether the RTP
contains a separate chapter on the implementation of TCM 2 on its pages,
where the RTP as a whole in fact implements TCM 2 as the Court has construed
it. As discussed below, the public interest will be harmed by the remedy
plaintiffs seek.
2. Requiring MTC To Reopen The RTP Will Detrimentally Affect The Congestion
Management Agencies And Their Statutory Role
In weighing the balance of harms, this Court should consider that re-opening
the RTP to possible amendment would dramatically and adversely affect the
county transportation agencies.
As detailed in the declarations of the county executive directors, the process
of selecting the myriad projects to be included in the RTP is lengthy, extensive
and politically inclusive. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5,
7; Halls Decl., ¶ 7; Mansourian Decl., ¶ 4, 6; MTC McCleary
Decl., ¶¶ 14-15; Napier Decl., ¶¶ 6-8; Wilford
Decl., ¶¶ 8-9; and Zdon Decl., ¶¶ 8-9. These
county agencies solicit the input of a broad range of staff, government
entities and the public (including labor, environmental groups, and business)
to obtain comprehensive input, feedback and participation in the selection
process. Id.
For instance, the Contra Costa Transportation Authority developed its congestion
management program, and its input to the RTP, through the extensive participation
of a technical coordinating committee, which includes members representing
MTC, Caltrans and the countys five transit operators (AC Transit,
County Connection, Tri-Delta Transit, WestCAT and BART), as well as representatives
from the local communities and other interested agencies. MTC McCleary Decl.,
¶ 14. Transit agency board members also participate as members
of specific sub-regional transportation planning committees, which assist
in planning transportation projects within their discrete geographical area
and review drafts of CMP components. Id. In addition, a citizens advisory
committee provides oversight on key CMP policies and programs, and the Authority
has a bus transit coordinating committee and a paratransit coordinating
committee. Id. The Authority has numerous outreach efforts covering the
four sub-areas of Contra Costa. Id. The Authority also consults with the
Bay Area Air Quality Management District and with Alameda, Solano, Santa
Clara and San Joaquin Counties, as well as with representatives of local
government from all jurisdictions in the county. Id. Each county seeks input
from the affected citizens, cities, counties, transit operators, and other
agencies. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5,
7; Halls Decl., ¶ 7; Mansourian Decl., ¶ 6; Napier Decl.,
¶ 6; Wilford Decl., ¶¶ 8-9, 19; Zdon Decl., ¶ 8-9.
As this process evolves, and before either the congestion management plan
or specific proposals for project listings from the plan to be included
in the RTP are sent to MTC for its review, the documents are scrutinized
in draft and final form in public meetings by CCTAs Planning sub-committee,
then by the 11-member board of commissioners, which consists entirely of
local elected officials from throughout the county. MTC McCleary Decl.,
¶ 15. The other counties utilize similar programs to obtain the
opinions and feedback of all interested constituencies, and to balance competing
needs and interests. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5,
7; Napier Decl., ¶ 6; Wilford Decl., ¶¶ 8-9, 19;
Mansourian Decl., ¶ 4; Zdon Decl., ¶ 8-9.
To perform this delicate balancing, however, takes substantial time and
effort. The nature of the extensive amendments sought by plaintiffs, including
consideration of trade-offs, public outreach, public review by the CMAs
and their constituent committees, and CEQA review by MTC, would require
many months to complete. Fay Decl., ¶ 12; Mansourian Decl., ¶ 10;
MTC McCleary Decl., ¶ 18; Wilford Decl., ¶ 20; Zdon
Decl., ¶ 8. Moreover, such a review would impose a heavy financial
burden on these modest-sized county agencies. Santa Clara County, for example,
estimates the process would cost the agency approximately $1 million, including
staff time workshop and meeting expenses, printing costs for draft plans,
printing public notices in local newspapers, hiring consultants and mailing
expenses. Evanhoe Decl., ¶ 9.
As part of the process, MTC solicits additional public input and feedback
and performs its own independent review of projects submitted by the CMAs.
MTC McCleary Decl., ¶ 15. The capital projects under consideration
for inclusion in the financially-constrained RTP are subject to on-going
discussions with MTC staff, who focus principally on promoting projects
of regional significance, and projects that significantly impact inter-county
travel. MTC has overruled local project or capital program proposals where
it believes a regional policy interest is at stake, sometimes after considerable
debate both locally and at MTC. Id. The current RTP required approximately
a year for MTC to complete this reviewwhich was an aggressive schedule.
Id.
Plaintiffs nevertheless ask that this Court order MTC to reopen its carefully
thought out RTP, and apparently expect that such a reopening will result
in a shifting of money to new transit projects and away from other currently
funded projects. The county CMAs and the public interest -- would
be adversely affected by such a process.
First, simply placing the projects included in the current RTP in limbo
will harm the public interest. Reopening the RTP could jeopardize the funding
currently committed to needed projects since that funding typically has
time deadlines that must be met to avoid losing the funding. Fay Decl.,
¶ 12; Halls Decl., ¶ 11; Mansourian Decl., ¶ 10;
Napier Decl., ¶ 14. Some county transportation agencies would
have to consider whether to spend the money to hire consultants to perform
engineering, design review and environmental assessments that are preliminary
to many of the transportation projects when funding may be in jeopardy.
Halls Decl., ¶ 11. This is particularly true given that the plaintiffs
want the reopened process to divert funds to their favored short term projects
and, potentially, away from other short term projects that must be subjected
shortly to preliminary reviews, final design and possible right of way acquisitions.
Second, should the MTC be required to consider deleting projects from the
RTP in order to free up money to fund additional transit projects, the county
CMAs would be forced to devote precious staff resources to determining which
projects to delay or delete. The county agencies are modest sized at best,
and thus cannot easily find staff time to perform such a time-consuming
process. Evanhoe Decl., ¶ 10 (Santa Clara: equivalent of 5 staff
members full time for 9 months); Fay Decl., ¶ 12 (Alameda: 3 out
of 7 staff persons, approximately half time for 4.5 months); Halls Decl.,
¶ 11 (Solano County: 80 person hours for two staff persons for
4 months); Mansourian Decl., ¶ 10 (Marin: one sixth of its annual
budget for 1 full time staff person for half a year); MTC McCleary Decl.,
¶ 18 (Contra Costa: 1 out of 5 staff persons full time for 12
to 18 months); Wilford Decl., ¶ 20 (Sonoma: full time planner
for at least one year; almost a third of the agencys annual staff
budget); Zdon Decl., ¶ 20 (Napa: 2 full time planners for equivalent
of one year, cost of $120,000 for staff time). They would need to devote
a substantial portion of employee-hours to perform such a task if MTC were
to be compelledas plaintiffs demandto amend the RTP by next
January. Id. They thus cannot afford to divert staff hours to such a project
without deferring other work they are obligated to perform. Id.
Third, upsetting the careful balance drawn by the counties will adversely
affect air quality and other important public goals. Deleting committed
projects to create an opportunity for new transit investment would not necessarily
benefit air quality, and could worsen it much of the targeted investment
is in high occupancy vehicle lanes, parking and other capital support facilities
for transit that could potentially be more attractive to choice riders than
the proposals supported by plaintiffs. MTC McCleary Decl., ¶ 18.
If the RTP were invalidated, and work were brought to a halt on projects
approaching implementation (including HOV lane projects supporting carpools,
vanpools and inter-county bus transit service), congestion will increase
compared to the alternative of moving forward with the adopted RTP, thereby
increasing both localized and regional emissions of NOx and HC. Id. Permanent
elimination of a number of the most critical projects could, over the long
term, also lead to increased congestion compared to the current RTP, and
thereby would probably result in worsened air quality. Id., ¶ 19.
Fourth, the county CMAs are required by statute to prepare congestion management
programs that consider travel methods other than transit. Bicycles, carpools,
vanpools and park-and-ride lots are examples of other transportation methods
that must be considered in developing a county plan. Cal. Govt
C. § 65089(b)(3). The congestion management program also must
include efforts to increase the capacity of the county multimodal program,
and that goal cannot be achieved by ignoring roads and highways. Cal. Govt
C. § 65089(b)(5). The public interest in achieving these valid
goals must be considered in crafting any equitable remedy.
The public interest simply is not served by the drastic remedy plaintiffs
seek. This is particularly true given that the remedy they desire is founded
on inaccurate assumptions, to which we now turn.
B. The Remedy Plaintiffs Seek Cannot Be Shown To Be Effective Or In The
Public Interest Because It Is Based On Unfounded Assumptions
1. Simply Spending More Money On Transit Does Not Necessarily Guarantee
Increased Ridership Because MTC Does Not Control The Daily Decisions Of
The Potential Transit Riders
The first implicit assumption plaintiffs make is that if MTC only spends
more money on transit, then ridership increases will follow on a steadily
increasing slope. For instance, in 2003 we would see a 4 percent increase
over the base figure, in 2004 we would find a 7 percent increase, and so
on until we reachand maintainat least a 15 percent increase.
If this were true, then perhaps the remedy plaintiffs seek might make sense.
But the fundamental assumption is false.
Transit ridership levels depend on the individual decisions of tens of thousands
of consumers every day, who are influenced by, among other variables: (a)
where each consumer works, lives, shops and seeks recreation; (b) the convenience,
timeliness, and cost of available alternative modes of travel, including
the cost of gas and parking; (c) public perceptions and desires relative
to the safety, comfort, flexibility and ease of use of those various alternatives;
and (d) the socio-economic characteristics, education level, and other attributes
of the consumer. Amicus McCleary Decl., ¶ 6; Wachs Decl., ¶ 15.
The effect of these external factors is pronounced: public transit use in
the United States fell by 12 percent (over a billion boardings) between
1990 and 1995, when unemployment grew, even though vehicle miles of transit
service grew by 5% during the same time period. Wachs Decl., ¶ 15(a).
Conversely, transit usage rose by 21 percent when unemployment fell to record
lows. Id.
Experts researching the relationship between spending money on transit and
ridership have found that subsidies to new transit systems have proven
cost-ineffective, and transit continues to lose ground to the automobile
despite major public expenditures. Wachs, M. Policy Implications
of Recent Behavioral Research in Transportation Demand Management,
Journal of Planning Literature, Vol. 5, No. 4 (May 1991)(Ex. B to
Amicus McCleary Decl.) at p. 334.
One National Research Council study compared the elasticities of decreasing
and increasing fares with expanding transit service. As that body concluded,
(t)he data suggest that ridership tends to be one-third to two-thirds
as responsive to fare change as it is to an equivalent percentage change
in service. Ex. A to Amicus McCleary Decl., at p. 10-12. These
elasticities do not indicate what percentage of auto drivers would
be diverted to transit with service and/or cost changes; only the anticipated
effect of such changes on likely transit patronage levels. Id. The study
notes, for example, that patrons are less likely to choose transit if they
spend too much time walking to or from transit, or waiting for transit to
arrive, but that lengthening the time spent on the bus or train does not
reduce patronage. Id. at p. 10-35. Armed with knowledge of these tendencies,
transit and planning agencies can maximize their likelihood of success,
but still cannot guarantee it.
This leads directly to the second erroneous assumption plaintiffs make:
that MTC can control these factors, or the decisions of the Bay Area population
who daily choose whether to ride transit. MTC cannot dictate the price of
gas, it cannot stop employers from laying off workers in recessionary times,
and it cannot guarantee that persons wont fear riding certain transit
systems. Neither MTC nor the CMAs can hold a gun to the heads of the public
and force them to ride transit. As a result, the Court should not issue
an order that compels MTC to achieve a result it has no actual ability to
control or guarantee.
There are other constraints on MTCs ability to increase transit ridership.
MTC does not control the decisions of the regions transit operators
that affect their costs or their operations, such as how much transit districts
chose to pay their employees or the terms of their collective bargaining
agreements (such as permitted absenteeism). Funding expansion of transit
service might increase ridership in the short term, but spiraling labor
costs later can result in necessary service cutbacks and an eventual decrease
in ridership.
2. The Transit Projects Plaintiffs Advocate Have Not Been Shown As Likely
To Improve Air Quality
Even if MTC could realistically guarantee that a specific number of transit
boardings would occur, the transit projects plaintiffs and AC Transit seek
will not result in a 15 percent increase in persons choosing transit over
automobiles, and thus the desired improvement in air quality. The reason
is that all transit riders are not equal in terms of their impact on air
quality. Amicus McCleary Decl., ¶ 6. Some transit riders utilize
public transit because they have no alternativethey do not drive or
own cars, either because of physical limitations, age restrictions (too
young or old), or economic considerations. Id. By contrast, choice riders
can afford to drive, or to take van or carpools, but choose instead to ride
public transit. Id. Coaxing choice riders away from their automobiles and
onto public transit is the result plaintiffs should seek, because it is
the only result that could possibly improve air quality. Id. Unfortunately,
if transit ridership gains derive entirely from the transit dependent, then
new trips by the transit dependent would by definition be trips induced
largely as a result of making transit more affordable or more convenient,
but would not typically result in diversion of an automobile trip. Id.,
¶ 7. To the extent that increased ridership comes from transit-dependent
riders, there is no air quality benefit, although there may be other societal
benefits. Id.; Wachs Decl., ¶ 18.
Plaintiffs meanwhile advocate the transit projects listed in AC Transits
Strategic Vision a blueprint which admits it was prepared
as part of the Consent Decree signed in this litigation in order to develop
a plan that would, if fully funded, meet the ridership goal[] of a
15 percent increase of annual boardings over 1982 levels. Strategic Vision,
at pp. 5-1 to 5-2. That Strategic Plan states that its proposed service
plan was prepared by making environmental justice issues
among
those first considered and addressed in developing how service would be
deployed as part of both a financially constrained operating model, or if
additional resources were available for a more robust operating scheme.
Id., at p. 5-5. To achieve these environmental justice goals, [m]aps
that depicted low income and/or autoless households (often a surrogate to
poverty or disability) were compared to recommended routing or frequency
changes to determine general and/or specific impacts to those populations.
In most cases, recommended improvements to the network directly and positively
impacted those neighborhoods with the highest concentrations of both low
income and Calworks households. Id.
As the Plan summarizes, [I]mproving transit service in the urban core
and on trunk lines contributes to social equity and environmental justice
by improving the mobility of lower income residents. Id. This is most
likely true, but it is equally true that improving the mobility of persons
who cannot drive automobiles does nothing to further the goals of the Clean
Air Act, which, after all, provides the only legal basis for the remedy
sought.
The number of choice riders is relatively small. As the National
Research Council found, [i]ncreases in vehicular traffic on the order
of 6 to 16 percent have been observed on the affected approaches to the
central city during transit strikes. Otherwise, reductions in auto traffic
in response to bus transit routing and coverage changes have usually been
too small or gradual to be measured directly. Ex. A to Amicus McCleary
Decl., at p. 10-6. To attract new transit trips from the private automobile,
transit needs to be convenient, fast, and dependable. Amicus McCleary Decl.,
¶ 8. Historic studies and statistical analyses for computer modeling
have determined that, collectively, choice users are two to three times
more sensitive to travel time (and convenience) than to cost when deciding
between an auto trip and transit. Id. Because of the low densities in much
of the Bay Area and the diverse destinations for work, shopping, recreation
and other trips, in many instances it is very difficult for transit to compete
effectively with the automobile in attracting such diverted trips. Id.
High-speed systems like BART and Caltrain offer the best opportunity for
travel time competition, but access and egress from the main travel link
remain challenges to making the transit trip time-competitive. Id. Often,
a linked trip by transit can take 50 to 100 percent longer than
the same trip by automobile, even if the auto experiences congestion. Id.,
¶ 11. Moreover, some studies suggest that individuals are most
sensitive to access and waiting times for transit more so than to
line-haul times and so high frequency of service and
convenient access are important in attracting auto users to transit. Id.
Unfortunately, convenient access often means auto parking, which defeats
part of the air quality benefit of transit; and more frequent service is
also more expensive. Id. Consequently, these factors must be taken into
consideration when attempts are made to predict the diversion of auto drivers
to transit, and the resulting air quality impacts, when assessing specific
new service proposals. Id. These factors have been considered by the CMAs
and MTC in preparing the current RTP and authorizing the specific transportation
projects included in the RTP. Id. While many of these specific projects
are anticipated to increase transit ridership and improve air quality, many
will not be completed within five years due to the lengthy time they require
to fund, design, engineer, and construct. Id. They nevertheless represent
the best hope for attracting automobile drivers to transit. Id.
The adopted RTP emphasizes expansion of high-speed transit, albeit with
certain operational improvements due in a longer time frame than sought
by plaintiffs. Id. From the perspective of permanently improving air quality,
the major new RTP proposals such as BART extensions also offer the possibility
of influencing land use densification, which is essential to truly change
travel patterns and reduce the dependency on the automobile. Id., ¶ 9;
see Napier Decl., ¶ 10. In contrast, if regional decisions favor
improving transit for the transit-dependents, it could discourage investment
in the capital improvements such as BART extensions that are the most likely
to facilitate higher transit use and attract choice riders.
Id. As noted by Professor Martin Wachs of the University of California at
Berkeleys Institute of Transportation Studies, the tendency of European
and Canadian residents to use transit, bicycle or walk are not based on
cultural differences or attributable to learned tastes or preferences, but
instead are related to substantial differences in their transportation,
taxation and land-use policies. Wachs, supra, at p. 335, citing Pucher
(1988)(Ex. B to Amicus McCleary Decl.). The CMAs advocated --and the RTP
includes--a strong effort to promote capital investments in transit systems
that will facilitate long term land use changes favoring transit patronage,
recognizing that imposing higher gasoline and automobile excise taxes, and
decreasing the amount of subsidized parking, is beyond their purview. Amicus
McCleary Decl., ¶ 10; Napier Decl., ¶ 10.
Plaintiffs have not shown that the injunction they seek will improve air
quality, and thus the remedy is not justified.
IV. Conclusion
The CMAs determine which highway and road projects to fund based on a careful
assessment of numerous factors, with the goal of reducing congestion, promoting
a healthy environment, and balancing the various transportation choices
offered to Bay Area residents. As transportation experts, they have carefully
performed their statutory duty, with significant public input and direction,
and they are proceeding to implement the chosen projects included in MTCs
current RTP. To the extent plaintiffs here seek to impose their own personal
views on the right balance among these transportation alternatives, the
Court should not enforce those views. It is not in the public interest to
compel a different balance than designed in the current RTP, particularly
when the transit projects plaintiffs propose will not improve air qualitythe
sole legal basis for this lawsuit and the remedy sought.
Dated: April 22, 2002
WENDEL, ROSEN, DEAN & BLACK, LLP
NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP
_________________________________________
Alison S. Hightower
attorneys for amicI curiae